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Posts Tagged ‘unilateral placement’

Speculation about IEP implementation insufficient to show denial of FAPE

Wednesday, September 17th, 2014

M.O. v. New York City Department of Education, 63 IDELR 37 (S.D.N.Y. 2014): A U.S. District Court denied a request for tuition reimbursement for a unilateral placement made by the parents of a student with a speech impairment.  The parents visited a classroom proposed by the school district, but found it inappropriate for the student.  The district subsequently proposed a different classroom, which the parents did not visit.  Instead, the parents placed the student in a private school, and pursued tuition reimbursement.  The District Court upheld the impartial hearing officer (IHO) and State Review Officer (SRO) determinations that the proposed IEP was appropriate, noting that any potential failure to implement (or how he would have fared in the proposed classroom) is speculative and not a proper basis to find a denial of an appropriate education.

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School districts responsible to offer IEPs to private school students

Thursday, July 24th, 2014

District of Columbia v. Vinyard, 62 IDELR 13 (D.D.C. 2013): A U.S. District Court held that a school district must develop and offer an IEP to its resident students who are placed in private schools by their parents.  The school district initially offered the student, who was diagnosed with a cognitive disorder and borderline intellectual functioning, an IEP (which, in the Court’s view, offered the student an appropriate education), but refused to develop an IEP for the subsequent school year when the student’s parents notified the school they intended to maintain the student in his private placement.  The Court held that the school district denied the student an appropriate education, as the district is obligated to develop and offer an IEP to each of its resident students with disabilities.  Here, the district conditioned its offer of an IEP on the student’s re-enrollment in the public school system.  However, the Court found such a condition improper.  In the Court’s view, the school district must develop an IEP.  If, after offering an appropriate IEP, the parents reject the public schools in favor a private placement, at that point the school district is no longer obligated to provide services.  Accordingly, here, the school district failed to offer an appropriate program and was therefore ordered to reimburse the parents’ for the private placement.

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School’s recommended IEP inappropriate where it focused on student’s physical disability, while his autism presented more significant educational impact

Thursday, March 27th, 2014

F.O. v. New York City Department of Education, 62 IDELR 51 (S.D.N.Y. 2013): A federal district court overturned the New York State Review Officer’s (SRO) decision denying parents reimbursement for a unilateral placement for their child with autism, global developmental delays, and myasthenia gravis.  The school recommended an IEP which focused on addressing the student’s myasthenia gravis, a condition impacting his speech and writing.  However, the evidence in the underlying impartial hearing demonstrated that the student’s autism spectrum disorder had a much greater educational impact.  Therefore, the student’s autism, and not his physical disability, should have been the focus of his IEP.  Accordingly, the Court overturned the SRO and awarded the parents tuition reimbursement.

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Parent’s participation in IEP process balances equities in her favor

Thursday, March 20th, 2014

A.R. v. New York City Department of Education, 62 IDELR 12 (S.D.N.Y. 2013): A federal district court overturned the New York State Review Officer’s (SRO) decision denying a parent reimbursement for a unilateral placement because she failed to participate in the IEP process.

There was no dispute that the school district failed to provide a free appropriate public education, and the Court relied on the SRO’s determination that the unilateral placement was appropriate for the student with learning disabilities and a speech and language impairment.  The SRO, however, in balancing the equitable considerations gave weight to the parent’s signing of a contract with the unilateral placement referencing the parent’s pursuit of due process rights as a source of payment of tuition.  The SRO thus denied reimbursement, since the equities favored the district.  The Court overturned the SRO, however, noting that the parent participated in the IEP process, visited the proposed public placement, and the enrollment contract gave the parent the ability to withdraw from the private program without financial penalty in the event an appropriate public placement was offered.  Accordingly, the Court awarded the parent reimbursement.

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Reimbursement denied where student was capable of being educated in general setting with special education aids, services, and accommodations

Monday, December 2nd, 2013

J.C.S. v. Blind Brook-Rye Union Free School District, 61 IDELR 219 (S.D.N.Y. 2013): A federal district court denied a parent’s request for reimbursement for a unilateral placement, confirming the conclusion of the New York State Review Officer (SRO).

The parent sought reimbursement for a private program in which she unilaterally enrolled her son with ADHD and learning disabilities.  Notwithstanding the parent’s placement, the school district’s IEP team met and recommended a program in a general education setting with a wide array of various special education and related services, as well as supplementary aids and services and accommodations.  The parent argued that the volume of aids, services, and accommodations indicated that the general education setting was inappropriate.  However, the strength of the student’s academic skills led the SRO to conclude that the general education setting was appropriate in terms of restrictiveness and therefore the school did not deny the student a free appropriate public education (FAPE).  Accordingly, reimbursement was denied.  The district court agreed, and upheld the SRO’s decision.

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Parent entitled to reimbursement where school’s proposed placement is too restrictive

Thursday, November 21st, 2013

Deer Valley Unified School District v. L.P., 61 IDELR 48 (D. Ariz. 2013): A federal district court awarded reimbursement to the parent of a student with high functioning autism.  The student had an identified need in socializing and communication.

The school prepared an IEP recommending a “special school,” without identifying which specific school the student would attend.  The school district ultimately recommended a specific program in which all the children with autism were non-verbal, and functioning at a lower level than the student.  The evidence showed such a program would not meet the student’s socialization and communication needs, particular since the IEP offered no interaction with non-disabled peers outside of the classroom.  Similarly, although the school district argued that non-disabled peers could push-in to the classroom, the court deemed such an arrangement unsatisfactory in light of the student’s IEP.  Accordingly, the court determined the school district denied the student a free appropriate public education (FAPE).  Since the parent unilaterally placed the student in a private school that addressed his socialization and communication needs, she was entitled to reimbursement.

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Reimbursement denied where unilateral placement failed to address student’s needs

Thursday, November 14th, 2013

M.W. v. Board of Education of the Enlarged City School District of Middletown, N.Y., 61 IDELR 140 (S.D.N.Y. 2013): A federal district court upheld the New York State Review Officer’s (SRO) decision that a parent of a student with a learning disability and behavioral problems was not entitled to reimbursement.

The parent withdrew the student from the residential program at which the school district assigned her, and unilaterally placed the student at a different residential program.  Following the unilateral placement, the parent filed a due process complaint alleging a denial of a free appropriate public education (FAPE) and sought reimbursement.  The impartial hearing officer (IHO) agreed with the parent that the child was denied a FAPE and that the unilateral program was appropriate.  The SRO, however, overruled the IHO in part, noting that the parent’s unilateral withdrawal contributed in part to the student’s failure to receive a FAPE.  More significantly, regardless of any FAPE denial, the SRO further overruled the IHO regarding the appropriateness of the unilateral program.  After reviewing the hearing record, the SRO found insufficient evidence to support the IHO’s conclusion that the unilateral program was appropriate, as such program failed to include a sufficient level of special education and related services to meet the student’s needs (both academically and behaviorally).  Accordingly, reimbursement was denied.  The district court upheld the SRO’s conclusions.

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Parent entitled to reimbursement where school’s proposed placement is too restrictive

Thursday, August 1st, 2013

Deer Valley Unified School District v. L.P., 61 IDELR 48 (D. Ariz. 2013): A federal district court awarded reimbursement to the parent of a student with high functioning autism.  The student had an identified need in socializing and communication.

The school prepared an IEP recommending a “special school,” without identifying which specific school the student would attend.  The school district ultimately recommended a specific program in which all the children with autism were non-verbal, and functioning at a lower level than the student.  The evidence showed such a program would not meet the student’s socialization and communication needs, particular since the IEP offered no interaction with non-disabled peers outside of the classroom.  Similarly, although the school district argued that non-disabled peers could push-in to the classroom, the court deemed such an arrangement unsatisfactory in light of the student’s IEP.  Accordingly, the court determined the school district denied the student a free appropriate public education (FAPE).  Since the parent unilaterally placed the student in a private school that addressed his socialization and communication needs, she was entitled to reimbursement.

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Failure to offer seafood-free environment entitles parent to reimbursement

Monday, July 29th, 2013

D.C. v. New York City Department of Education, 61 IDELR 25 (S.D.N.Y. 2013): A federal district court awarded reimbursement to the parent of a student with a pervasive developmental disorder, mild mental retardation, and a severe language disorder.  The student also had a seafood allergy.

The school prepared an IEP recommending a seafood-free environment to ensure the student’s safety.  However, when the parent toured the recommended school she was informed that it was not seafood-free.  Due to the severity of the student’s seafood allergy, the student’s mother continued his enrollment in a private program that accommodated the allergy with a seafood-free environment.  Notwithstanding the school’s assertions that it would have accommodated the student’s needs, the court followed guidance from the Circuit Court of Appeals, which held that retrospective testimony is impermissible.  Accordingly, the district court here held that the school could not retroactively demonstrate its ability, and willingness, to render the school seafood-free.  Instead, the court must determine the parent’s entitlement to reimbursement based on what she understood the recommended placement to be at the time of its recommendation.  Through that lens, the parent here was entitled to reimbursement.

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Teen entitled to ESY when his reading skills quickly regressed during short breaks from instruction

Monday, July 8th, 2013

Annette K. ex rel. C.K. v. State of Hawaii, Dep’t of Educ., 60 IDELR 278 (D. Hawaii 2013) (this case involves a student with severe dyslexia who had previously received extended school year services (ESY) after breaks from school of more than seven days. An IEP team met to discuss the student’s education, and determined that he was not eligible for ESY. The parent challenged the proposed IEP and unilaterally placed the student in a private school, and also hired a private reading tutor. The Hearing Officer found for the district, stating that though it was inappropriate to deny the student ESY, this was simply a procedural violation that did not fatally flaw the IEP. The parent appealed the Hearing Officer’s decision, arguing that the Hearing Officer’s finding that ESY was inappropriately denied to the student requires a finding that the student was denied a FAPE. The court reversed the Hearing Officer’s decision, finding no explanation for deeming the denial of ESY services as a procedural violation, rather than a substantive violation. Based on evidence of rapid regression in reading skills, and the student’s progress in the private school, the court found that the district failed to provide a FAPE to the student by denying him ESY services. The case was remanded back to the Hearing Officer to determine the proper relief, including whether the parent may be entitled to reimbursement for the unilateral placement and private reading tutor.

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